The New Senate USA FREEDOM Act: A Step Towards Surveillance Reform?

Yesterday, Senator Patrick Leahy introduced a revised version of his USA FREEDOM legislation, the USA FREEDOM Act of 2014, which focuses on telephone record collection and FISA Court reform. While this bill is not a comprehensive solution to overbroad and unconstitutional surveillance, it is a strong first step. EFF urges Congress to support passage of the bill without any amendments that will weaken it

The USA FREEDOM Act of 2014 will end bulk collection of phone records under Section 215

EFF, along with other groups, made it clear that we would not support any legislation that did not effectively end bulk collection of call detail records. The Senate version of USA FREEDOM achieves this goal, by limiting collection to instances where there is reasonable suspicion that a "specific selection term" is associated with international terrorism.

The House version of USA FREEDOM used murky language around the phrase "specific selection term," in particular, raising concerns that a "specific selection term" could include an entire zip code or other similarly broad terms. For purposes of collection of call detail records where there is reasonable suspicion, the Senate version continues to use the definition that a specific selection term is an "individual, account, or personal device." However, for any other purpose, the term must narrowly limit the scope of a request for information, and cannot include a broad geographic region or an entire electronic communications service provider.

The USA FREEDOM Act of 2014makes significant improvements to the FISA Court

The new USA FREEDOM makes two key changes to the secretive FISA Court process. First, we were pleased to see that it creates a special advocate position that will serve as an amicus in the court and is intended to advocate for civil liberties and privacy.

Second, it directs the Office of the Director of National Intelligence, in consultation with the Attorney General, to declassify "significant" FISA Court opinions. We would have preferred that this process be overseen directly by the Attorney General, with input from the FISA Court itself. On the other hand, the new USA FREEDOM bill actually defines "significant" (the original USA FREEDOM bill did not), and this definition includes any novel interpretation of "specific selection term."

The legislation also makes several other improvements. When USA FREEDOM was originally introduced, we were concerned that it would codify "about" searches — the practice of searching for any communication that references a target, in addition to communications to and from a target. We were deeply concerned that this controversial practice would be written into law, and glad that the Senate version removes any reference to that form of searching.

The new legislation also has some small improvements to the initiation and judicial review procedure for national security letters — secretive FBI orders for data that are accompanied by gag orders — as well as pen register and trap-and-trace devices. The bill creates new reporting requirements for the government — including a requirement that the government estimate how many US persons have been affected by backdoor warrantless searches of information collected under the authority of Section 702 of the FISA Amendments Act. And finally, the bill creates a new option for companies to report on national security requests.

What the USA FREEDOM Act of 2014 doesn't do

First and foremost, the USA FREEDOM Act of 2014 does not adequately address Section 702 of the FISA Amendments Act, the problematic 2008 law that the government argues gives it the right to engage in mass Internet surveillance. We remain committed to reform of Section 702. We intend to pursue further reforms to end the NSA's abuse of this authority.

The legislation also does not affect Executive Order 12333, which has been interpreted by the NSA to allow extensive spying both on foreigners and US citizens abroad. Strictly speaking, we don't need Congress to fix this — the President could do it himself — but legislation would ensure that a later President couldn't reinstate 12333 on her or his own.

The legislation may not completely end suspicionless surveillance. With respect to call detail records, it allows the NSA to get a second set of records (a second "hop") with an undefined "direct connection" to the first specific selection term. Because the "direct connection" standard is vague, the government may seek to construe that phrase to mean less than reasonable suspicion.

Finally, as with all legislation up to this point, the new USA FREEDOM continues to exclude meaningful protections for the rights of non-US persons.

A meaningful first step

The USA FREEDOM Act of 2014 is a real first step because it creates meaningful change to NSA surveillance right now, while paving the way for the public to get more information about what the NSA is doing. We believe that this legislation will help ensure that the NSA reform conversation in Congress continues, rather than shutting it down. That's why we urge Congress to support the Senate version of USA FREEDOM and pass it without any changes that will weaken its provisions.

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